Daniel Gicheru Kingori & 2 others v Wambugu
The bottom line
#Kenya's Court of Appeal ruled you cannot lose a review of a High Court succession decision and then try to appeal the same ruling.
What this practically means
#Executive summary
#Key legal issues
#Whether withdrawal of a notice of appeal bars a subsequent appeal after a failed review
Withdrawal itself is not a bar, but pursuing review after withdrawal and then seeking to appeal the same judgment amounts to an abuse of process and multiple fronts of litigation
The court adopted Odunga J's reasoning in HA v LB that allowing parties who failed on review to attack the same decision on appeal opens several fronts in litigation, contravenes the overriding objective and amounts to playing lottery with judicial process. Both options cannot be pursued concurrently or sequentially.
Whether leave is required to appeal High Court succession decisions to the Court of Appeal
Leave is required; there is no automatic right of appeal from High Court judgments in succession matters, though such judgments are not expressly made final
Section 50 of the Law of Succession Act makes High Court decisions final only on appeals from Resident Magistrate courts; the Act has no provision for appealing High Court decrees. Noting conflicting decisions (Kithaka v Nyaga; Rhoda Wairimu Karanja), the court held leave must be sought from the High Court under the Court of Appeal Rules.
Correct forum for leave/extension of time in succession appeals
The applicants ought to have sought leave or extension of time from the High Court first, then approached the Court of Appeal if unsuccessful
Under the applicable rule on applications for leave to appeal in civil matters, where an appeal lies with the leave of the superior court, leave is sought from that court; only after refusal may the applicant come to the Court of Appeal within fourteen days.
Legal principles established
#- A judgment, decree or order of the High Court under the Law of Succession Act is not appealable to the Court of Appeal as of right; leave must first be sought and obtained from the High Court.
- A party who has unsuccessfully sought review of a decision cannot then attack the same decision on appeal; the two remedies cannot be pursued one after the other.
- Extension of time is a judicial discretion exercised on established factors including length of and reasons for delay, arguability of the intended appeal and prejudice to the respondent.
Court orders
#- 1.Dismissal of the applicants' application dated May 16, 2022
- 2.No orders as to costs
- On appeal from
- High Court of Kenya at Nairobi
- Succession Cause No. 2543 of 2004
- Jurisdiction invoked
- Rule 4 of the Court of Appeal Rules (extension of time jurisdiction)
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (2)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Waithira v Ngari & another (Environment and Land Miscellaneous Case E005 of 2025) (Environment and Land) [2025] KEELC 6765 (KLR)[2025] KEELC 6765 (KLR)9 Oct 2025followed
- Njoroge (Suing as the legal representative of the Estate of Christina Wageni Mburu) v Mwangi & another (Environment and Land Miscellaneous Application E038 of 2023) [2024] KEELC 5006 (KLR)[2024] KEELC 5006 (KLR)27 Jun 2024followed
Cite this brief
#Cite this brief
Caselaw, "Daniel Gicheru Kingori & 2 others v Wambugu", Case Analysis (2022). Civil Application E167 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/1168/eng@2022-10-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.